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John C. Vorys, As Executor of the Estate of Helen C. v. Camp Menawa

State of New York Supreme Court, Appellate Division Third Judicial Department


January 19, 2012

JOHN C. VORYS, AS EXECUTOR OF THE ESTATE OF HELEN C. MURRAY, DECEASED, APPELLANT,
v.
CAMP MENAWA, LLC, ET AL., RESPONDENTS.

Appeal from an order of the Supreme Court (Muller, J.), entered March 30, 2011 in Essex County, which denied plaintiff's motion for an order compelling certain disclosure from nonparty witnesses.

The opinion of the court was delivered by: Kavanagh, J.

MEMORANDUM AND ORDER

Calendar Date: November 14, 2011

Before: Mercure, Acting P.J., Rose, Lahtinen, Kavanagh and McCarthy, JJ.

In 2002, Helen C. Murray (hereinafter decedent) sold a parcel of real property located in the Village of Lake Placid, Essex County to defendants. Pursuant to the contract of sale, decedent retained a life estate in the property and defendants executed a mortgage on the property in favor of decedent. When a dispute arose regarding the obligations assumed by the parties for repairs and maintenance to the property, decedent, in 2004, commenced this action to foreclose the mortgage on the property since defendants defaulted on their payments. Defendants filed a counterclaim to recover monies they claimed to have expended to perform repairs and maintenance on the property. Upon decedent's death, plaintiff was appointed executor of her estate. In 2011, plaintiff filed a motion for an order permitting service of subpoenas to depose up to 10 nonparty witnesses who were familiar with the property that is the subject of this litigation. Supreme Court denied plaintiff's motion and plaintiff now appeals.

"Disclosure against a nonparty is available only upon a showing of special circumstances, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources or otherwise is necessary to prepare for trial. Whether such special circumstances have been shown to exist is a sui generis inquiry committed to the sound discretion of the court to which the application is made" (King v State Farm Mut. Auto. Ins. Co., 198 AD2d 748, 748 [1983] [citations omitted]; see Parnes v Parnes, 80 AD3d 948, 953 [2011]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d 199, 202-203 [2010]; see also CPLR 3101 [a] [4]). Inasmuch as plaintiff did not establish that the information sought from the nonparty witnesses could not be obtained from other sources, we are unwilling to conclude that Supreme Court abused its discretion in denying plaintiff's motion (see Caruso v Northeast Emergency Med. Assoc., P.C., 85 AD3d 1502, 1506 [2011]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 80 AD3d at 202-203).

Mercure, Acting P.J., Rose, Lahtinen and McCarthy, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20120119

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